Showing 'Sunshine' To the Door

ByCarla Hall

February 23, 1980

Yesterday morning, Michael Mooney began trying to get himself thrown out of the National Council on the Humanities' closed quarterly session.

He succeeded -- sort of. The council, by unanimous vote, ordered the session closed, and Joseph Duffey, the chairman of the National Endowment for the Humanities, after some pointed questions from Mooney, said that the group was ordering Mooney to leave.

"That was all I needed," said Mooney -- a contributing editor for Harper's -- who said he was following The Minneapolis-Star Tribune's guidelines for journalists on how to get thrown out of meetings in such a way that they have a legal case against the throwers.

"It was an absolute order -- an absolute vote of the council," said Mooney, who for a year has been protesting these closed sessions. "Last year, we couldn't get a vote of the council."

"You're improving," one Endowment staffer deadpanned.

The now well-know "sunshine" law prohibits federal agencies with two or more presidentially appointed heads from closing their meetings to the public unless the business of the day is highly sensitive, national security matters.

Mooney, who has been doing a long study on the NEH, feels that its advisory council -- the National Council on the Humanities, which assembles in town four times a year to advise chairman Duffey and discuss the final selections for the endowment's prestigious grants -- should not be advising in closed session.

Currently, the Council opens the first hour and a half of its second session to the public to discuss very generaly issues and make announcements -- such as yesterday's that Barbara Tuchman, author of "A Distant Mirror," about the Black Plague of the Middle Ages, would be the Jefferson lecturer this year.

Aside from that announcement, Mooney's confrontation was the only lively note in a public recounting of some predictable budget items and congressional hearings.

Mooney's request was expected by the Council, which did answer, if a bit disdainfully.

"The closing of this meeting is not for the privacy of this council but for those who are applicants," Duffey told Mooney at the end of the public session. "The sunshine law does not, in my reading, or in our counsel's, apply to this body, since it applies to governing bodies. This agency is an advisory agency asked to give advice to the chairman [of the Humanities Endowment] and therefore covered by the Federal Advisory Committee Act and not the sunshine law. And perhaps we can continue this discussion over coffee. . . ."

Mooney said the council's order to close meetings means that the group could be sued in class-action of Freedom of Information suits.

"NEH is not a sensitive agency," he said. "Does it have to deal with issues of diplomacy or national security or classified documents?"

Duffey, who said he has consulted with the Justice Department about all this, said later, "There's an important principle involved here -- whether citizens can be asked in confidence at an early stage of this process to give advice free from intimidation and inquiry. I am not entitled to that as chairman. I have to make my final decisions and be accountable and open to the public. If the council can't advise me, [in private] you make a mockery of the whole advisory process. It becomes a political game."